jump to navigation

Blue-Ribbon Panel To Take On Corrections Costs September 28, 2011

Posted by FairSentencing in : Current News , add a comment

Prisons are eating up more and more of Oregon’s budget. A blue-ribbon panel convened by Governor John Kitzhaber will meet Friday to look at ways to reign in corrections spending. But it’s not clear whether there’s consensus to do something about it.

Oregonians really like mandatory minimum sentences. Voters passed Measure 11 back in 1994, and more recently approved Measure 57 and Measure 73. The measures set minimum terms for everything from murder to repeat drunk driving.

But do these sentencing laws drive up corrections costs?

“Yes, that would be an understatement,” says Tung Yin, a law professor at Lewis & Clark Law School in Portland. He’s studied the effect of mandatory minimum sentences on the criminal justice system.

“It’s not surprising that the public likes them,” Yin says. “The problem is is that the cost of it, if you will, is not really made clear when you vote on these measures. I mean, there may be an estimate of the actual impact but there’s no real enforcement mechanism.”

In other words, if more people than anticipated wind up getting sentenced, the prison system responds by increasing capacity, and Oregon has been doing just that.

Since 1994, when voters approved Measure 11, the portion of the state’s budget devoted to the Oregon Department of Corrections has more than doubled, according to the Legislative Fiscal Office. Even long-time tough-on-crime advocates say it’s time to look at correction spending.

Doug Harcleroad is a former district attorney and now lobbies for the Oregon Anti-Crime Alliance.

“Well at this point in time, Oregon doesn’t have any money, he says. “I mean, we have money but it’s tight budget times. So coming up with solutions to the budget crisis is a good thing to do.”

But Harcleroad says the governor’s Commission on Public Safety needs to consider not just dollars and cents. He says the group also needs to consider the impact on everyday people when it comes to keeping criminals behind bars.

Shannon Wight is with the Partnership for Safety and Justice. That group has called Measure 11 “misguided.” But Wight says she doesn’t think the panel will or should recommend completely throwing out the mandatory minimum sentencing law.

“I think there’s a long-term trajectory that this group is going to look at,” she says. “Where if we made tweaks to our sentencing scheme now, there are long-term savings down the road, and it’s time for Oregon to make those changes.”

Whatever changes the group recommends, the deadline to make up its mind is mid-December. That timeline makes Doug Harcleroad skeptical.

“They’re supposed to come up with comprehensive sentencing reform in five months,” he says. “That’s a big, big task.”

But the panel does have two big names leading it: Oregon Supreme Court Chief Justice Paul de Muniz and former Democratic Governor Ted Kulongoski.


Power and Prosecutors September 27, 2011

Posted by FairSentencing in : Current News , 1 comment so far

Julie Stewart, President of FAMM, has this message:

It will come as no surprise to anyone who has been indicted that prosecutors have enormous power.  Yesterday, the New York Times ran an excellent article that highlighted this unintended consequence of mandatory minimums.

The article notes that one result of the increase in prosecutorial power is the so-called “trial penalty.” Defendants are offered relatively shorter sentences in exchange for a guilty plea, or they face significantly longer penalties if they maintain their innocence and exercise their constitutionally-protected right to a trial by jury.  Unfortunately, this “choice” is one far too many FAMM members are familiar with.

Among them is FAMM member Lee Wollard, whose case we gave to the New York Times reporter.  Wollard’s decision to take his case to trial resulted in a 20-year mandatory minimum prison sentence under Florida’s “10-20-Life” law, even though prosecutors originally offered him five years probation if he would plead guilty. You can read about Wollard’s case here and read an op-ed I wrote about it last summer for the Washington Times here.

Circulate this New York Times article widely – everyone in the country should read it!



PSJ’s Youth Justice Report – Misguided Measures September 20, 2011

Posted by FairSentencing in : Current News , add a comment

Fifteen years after Measure 11 passed in Oregon, Partnership for Safety and Justice (PSJ) teamed up with the Campaign for Youth Justice to conduct a comprehensive examination of the impact of charging Oregon’s youth as adults. After two years of research and analysis, we are excited to announce the release of Misguided Measures: The Outcomes and Impact of Measure 11 on Oregon’s Youth. Misguided Measures is the first report to focus on the impact of Measure 11 specifically on Oregon’s youth.

The report shows that Measure 11 is out of step with national research and best practices in regard to youth justice, accountability and rehabilitation. Our analysis of Measure 11 cases shows that a large number of youth are inappropriately being placed into the adult system through the Measure 11 indictment process. These youths, who should be in the juvenile justice system that is designed for them, are charged as adults, which is not good public safety policy and creates lifelong barriers that make it harder for those youth to succeed.

The timing of this report’s release could not be better as it coincides with Governor Kitzhaber’s decision to appoint a high-level commission, led by Oregon Supreme Court Justice Paul De Muniz and including former Governor Ted Kulongoski, to review the effectiveness of Oregon’s sentencing policy. We expect that Misguided Measures will provide critical information and analysis as the commission makes its recommendations to help stem Oregon’s overreliance on incarceration. Furthermore, this report comes on the heels of the passage of House Bill 2707 that makes youth facilities the default site of placement for youth charged as adults pre-trial. This bill, successfully fought for by PSJ and its members, indicates that there is momentum building for substantial change in Oregon’s practice of charging youth as adults. (See Oregon’s 2011 Legislative Session Wrap-Up  for more information on HB 2707.)

Those with a stake in Oregon’s youth justice community (called “stakeholders”) immediately received the report with enthusiasm, seeing it as an important tool for change. Ken Hales, Director of Community Justice for Deschutes County, praised the report, saying, “Misguided Measures demonstrates that Measure 11, as it is applied to youth, deprives young people of individual justice and is ineffective and costly. Measure 11 has opened a wide door that funnels kids, almost uncontested, into the adult justice system, which is counter-productive as far as rehabilitation is concerned. This study will help build the case for the changes we know are needed.” Craig Prins, Executive Director of the Oregon Criminal Justice Commission, was equally excited about the prospects of the report being used to create necessary changes: “I hope it has a big effect. The key question is, who should make decisions in individual cases, and how should they do it? We should use what we’ve learned in the last 20 years to answer that question.”

Such enthusiasm for Misguided Measures is attributable to the fact that the report goes beyond the political rhetoric that usually surrounds Measure 11 by presenting the most recent research about juveniles charged as adults and providing a thorough and scientific analysis of every juvenile Measure 11 case from 1995 to 2008. In that sense, it is very similar to reports released by the Rand Corporation and the Oregon Criminal Justice Commission. Both of these reports are critical of Measure 11, especially the distance between what voters were promised when they passed Measure 11 and how it is actually implemented.

Proponents of Measure 11 promised that solid, minimum prison time would incapacitate convicted offenders, deter potential offenders, and provide predictable and comparable sentences. Instead, what recent reports have found is that the major consequence of Measure 11 has been to transfer discretion from judges to district attorneys. This change has, in fact, undermined the reasons given in support of Measure 11, particularly to provide predictable and comparable sentences for a given offense across the state. Instead, these reports emphasize, in most cases, prosecutors use the threat of mandatory minimums as leverage to obtain a plea bargain to a lesser charge.

Our report reached similar conclusions regarding the use of mandatory minimums to obtain a plea bargain to a lesser charge. After following over 3,000 juvenile Measure 11 cases from indictment to conviction, we found that 92% of cases were resolved through plea deals. While plea deals are a common feature of case proceedings, such a high rate is problematic because settling out of court eliminates the possibilities of the back-and-forth discussions that can happen in a juvenile courtroom – where the needs of the victim, the community, and the young person can be identified and balanced.

Overall, by following every juvenile Measure 11 case from 1995 to 2008 from indictment to conviction, the report paints a picture of how Measure 11 is implemented that will surprise most Oregonians who assume that it only applies to extremely serious offenders. Our analysis shows that 21% of cases resulted in conviction for the most serious Measure 11 offense and 17% of cases resulted in a conviction for a lesser Measure 11 offense. Therefore, only 38% of all indictments resulted in a Measure 11 conviction; 44% of cases resulted in a plea to a lesser, non-Measure 11 adult conviction and 18% resulted in no adult charge, which either meant that the case was dismissed or returned to the juvenile system. This means that over 60% of indictments do not result in a Measure 11 conviction (see Figure 1).


The consequences of initially being indicted for a Measure 11 offense as an adult do not extend much beyond it being used as leverage during the plea bargain process. However, the consequences for juveniles are extremely devastating because it diverts them into the adult system and keeps them there whether or not they are convicted of a Measure 11 offense. The 44% of youths who received a non-Measure 11 adult convictions will still be treated as an adult, even though the offense they are finally convicted of is not covered by Measure 11.

Once they are in the adult system, young people might be placed in an adult jail where they are at increased risk of violent assault and prevented from continuing their education. They will also be denied age-appropriate programming and treatment designed to prevent recidivism. Finally, they will receive a felony record that creates huge barriers to attaining an education, housing and employment. As a result, it is very difficult for them to become successful and productive members of society.

People in support of Measure 11 have always claimed that it only applied to the most serious juvenile violent offenders, often pointing to the serious offenses it covers. This is partially the reason why it has been difficult to even discuss the possibility of reforming Measure 11. Our finding that 44% of juveniles indicted under Measure 11 are charged with a non-Measure 11 adult offense should give pause to Oregonians. Clearly all youths indicted under Measure 11 are not serious offenders that should be placed in the adult system.

In another sign that Measure 11 is not targeting violent offenders, but instead funneling youth into the adult system, 36% of all youth convicted of an adult offense through the Measure 11 charging practice were placed on adult probation. While being placed on probation is preferable to being placed in prison, it is necessary to take a step back and ask the question, “If these youth are so dangerous that they need to be placed in the adult system, why are they being released into the community?” That is, why saddle these youth with an adult felony record rather than send them back to the juvenile system?

This is particularly important given the extremely stern terms of probation and severe punishments in the case of revocation. For example, it is often the case that youth on probation must be in school or have a job to fulfill the terms of probation. However, both these requirements are hard to fulfill. For one thing, it is difficult for youth to reintegrate themselves into school because of the level of education they received while in jail awaiting trial. Similarly, it is difficult for youth to get jobs because they now have felony records. The odds of having their probation revoked are largely stacked against them. To make matters worse, because they are on adult probation, for many youth having their probation revoked means serving time in an adult jail. All of this despite not being convicted of a Measure 11 offense. This is an example of the intricacies of how Measure 11 is actually implemented that most people are unaware of and that we hope Misguided Measures brings attention to.

The report also demonstrates that Measure 11 has failed to fulfill promises of predictable and comparable sentences. This is largely because most cases are resolved through plea deals and are therefore at the complete discretion of the District Attorney’s office. Our analysis indicates that counties have different prosecutorial practices that result in different outcomes for youth. For instance, in Marion County 44% of youth indicted are convicted for the most serious offense while in Multnomah County only 21% are. Two youth indicted for the same crime, but processed in different counties, will most likely face very different sentences.

This “justice by geography” – where the application of a law varies from place to place – also helps to highlight something that we at PSJ have been saying for a long time: Measure 11 has not made Oregonians any safer. Over a three-year sample period from 2006 to 2008, data from the 36 Oregon counties show no discernible connection between the number of young people charged with a Measure 11 offense and the juvenile crime rate.

As for the claim that Measure 11 would deter potential offenders from committing crime, Misguided Measures includes research that shows that the brains of teenagers are not fully developed, particularly the area of the brain that deals with decision making. This research suggests that youth are much less able than adults to weigh risks and consequences of their behavior, control their impulses, handle stressful situation and say no to peer pressure. It is highly unlikely, therefore, that Measure 11 works to deter youth. This is especially true given that many teenagers have not heard of Measure 11 and if they have, are unaware of what offenses it applies to. Misguided Measures also includes research that shows that charging youth as adults is actually counterproductive and may decrease public safety.

Measure 11 has had significant costs for all Oregonians, but it has different impacts on different communities. By breaking down indictments by race and ethnicity, we were able to see how the law uniquely affects each community. Not surprisingly, the results of the analysis raised even more questions about how Measure 11 is implemented. For example, black youth comprise 4% of Oregon’s population but 19% percent of all indictments (see Figure 2). Clearly, black youth are overrepresented in Measure 11 cases. However, a majority of these cases involved Robbery-2 charges, one of the least serious Measure 11 offenses. Moreover, black youth were also more likely to plea down to a non-Measure 11 adult conviction. This raises some serious questions and concerns. Are black youth being consistently over-charged? Why are black youth being charged as adults for lower level offenses at such higher rates? What impact does this have on Oregon’s black communities?


We also found that almost 50% of white youth are indicted for sex-related offenses. Given that juvenile sex offenders are very unlikely to reoffend and that a lot of cases involve complex family dynamics in which the offender might also have been a victim, are we sure that placing youth in custody with adult sentences is the best way to hold these youth accountable and ensure that they receive the proper treatment and programming for their eventual reentry into society? Finally, our results indicates that Latino youth are more likely to be found guilty of the crime for which they are indicted compared to white and black youth. While one interpretation of this is that it is somehow easier for prosecutors to build a case against Latino youth, another possible explanation it that because of cultural and language barriers, Latino youth are not adequately prepared to deal with a deliberation process that involves highly technical language. We urge system stakeholders to take a much deeper look at how Latino youth are fairing under Measure 11 in order to ensure that they are adequately prepared for the plea bargaining process.

There are a number of reforms that would improve Oregon’s approach to youth justice, accountability, and rehabilitation. In this report, we make three primary recommendations: remove youth from adult jails, extend Second Look to all youth convicted as adults and remove secondary offenses from Measure 11. The first recommendation would mean fully implementing House Bill 2707 so that all youth in Oregon are held in juvenile facilities pre-trial. In addition, few youth have benefited from an opportunity to receive a “Second Look” hearing. Oregon’s “Second Look” law was conceived as an opportunity to help provide young people in custody with an incentive to change their behavior. It is a good policy that would result in benefits for both impacted youth and the community. Finally, given the number of cases that end in a non-Measure 11 adult offense conviction, removing second-degree offenses from Measure 11 would ensure that prosecutors continue to have the discretion to move youth engaged in the most serious behavior to the adult system, but also help steer youth who could benefit from juvenile services back to the juvenile justice system.

Perhaps the most important reform is stopping the practice of automatic transfers to adult court altogether. The best thing Oregon could do is to require mandatory waiver hearings for any youth that prosecutors would like to charge as an adult. As an organization, PSJ is committed to this goal. Misguided Measures is an important step towards achieving it.


Modified release law results in confusion September 18, 2011

Posted by FairSentencing in : Current News , add a comment

A bill that modifies how mental patients with criminal pasts are released from the Oregon State Hospital has left confusion, bitterness and dueling state legal opinions in its wake, months after its passage by the 2011 Legislature.

Senate Bill 420 cleared the Legislature after an intense lobbying battle, pitting law enforcement officials on one side against mental-health advocates and patient activists on the other.

The approved bill, described as a compromise between the competing constituency groups, set the stage for the advent of a new two-tiered patient-release system.

Starting on Jan. 1, release authority for criminally committed patients will be divided between the existing state Psychiatric Security Review Board and a new panel to be created by the hospital.

By many accounts, SB 420 lacked clarity on key points, requiring an attorney general’s legal opinion to cut through the fog.

But the recently issued AG’s opinion also drew fire from hospital patients and a key Salem legislator who said it failed to accurately reflect the Legislature’s intent in approving the bill.

Amid lingering concerns, mostly expressed by patients who remain under the PSRB, here’s how the new system will work:

Tier 1 patients, judged guilty except for insanity of Measure 11 crimes such as murder, rape and first-degree assault, will be under the jurisdiction of the PSRB.

Tier 2 patients, deemed guilty except for insanity of non-Measure 11 crimes, will be under the jurisdiction of the Oregon Health Authority, which oversees the state hospital. Hospital officials said plans call for establishing a new board to make release decisions for these patients.

At the crux of the confusion caused by the bill: Which entity — the PSRB or the Oregon Health Authority — will have jurisdiction over the about 120 current patients who meet the non-Measure 11 criteria?

“If you read the law, it doesn’t state one way or another,” about the fate of the current patients, said Greg Roberts, hospital superintendent. “That was one of the issues. Because it wasn’t specifically clarified in the law, we had to get a legal opinion about it.”

The hospital and the PSRB jointly asked the state Attorney General’s Office to resolve the dilemma.

In a memorandum issued on Aug. 19, the AG concluded that all current patients must remain under PSRB jurisdiction, that the language of the bill is not written in a way to apply to current patients.

The legal opinion noted, in part, that “there is no provision in SB 420 that provides for retroactive effect,” and that “it may be inferred that the legislature did not intend that jurisdiction automatically transfer upon the bill’s effective date.”

State Sen. Jackie Winters, R-Salem, a chief sponsor of the bill, was taken aback by the AG’s assessment.

“I don’t think their interpretation is accurate,” she said. “That was not our legislative intent.”

Contrary to the AG’s opinion, lawmakers intended for control over the 120 patients now at the hospital for non-Measure 11 crimes to shift away from the PSRB, Winters said.

The veteran lawmaker asked legislative counsel, which assisted lawmakers in crafting SB 420, to draft a rebuttal response. She said it would “give an opinion from our side.”

As of Friday, legislative counsel still was working on the counter-response to the disputed AG’s opinion, Winters said.

Meanwhile, officials at the state hospital and the PSRB have said they will conform to the AG’s directive.

“Starting in January, we will have jurisdiction over the (incoming) non-Measure 11 patients and PSRB will maintain jurisdiction over the Measure 11 patients, plus the existing patients,” Roberts said.

For some patients who had urged state leaders to abolish the PSRB, the prospect of remaining under board control is a discouraging development.

Several patients described frustration in recent telephone interviews with the Statesman Journal.

Fed up with the board’s refusal to approve him for conditional release, Richard Laing said he is pursuing alternate ways to get out of the hospital.

“I’ve got an application for clemency with the governor, two appeals on habeas corpus and four lawsuits against these people,” he said. “I’m doing the best I can.”

The PSRB was created in the late-1970s to provide added safeguards to the hospital’s release process.

Law enforcement officials praise the board for carrying out its primary responsibility, which is to protect the public. But patients and mental-health advocates contend that the board’s conservative approach to releasing patients results in long and costly stints of hospitalization.

“The PSRB is an archaic and outdated system” said patient Matthew Kirby, leader of the consumer council at OSH. “By law, its only duty is to protect the public. That, of course, is a necessary piece. But they forgo the civil rights of people with mental-health issues by locking them up for years and years on end. It’s well known that they are very conservative, and their discharge processes are very convoluted.”

Kirby was part of a group of patient activists who urged legislators to curtail the PSRB’s authority. Patients lobbied for passage of the original version of Senate Bill 420, which called for stripping the PSRB of all release authority and giving the hospital final say on discharges.

“The original intent of Senate Bill 420 was to bring more science and fact into the discharge process, not fear and stigma,” Kirby said. “To hand the authority for discharge over to the clinicians and the physicians and the staff that work with us on a daily basis, not some foreign body that meets with us for 20 minutes and decides to keep us in the hospital.”

The original bill drew strong opposition from Oregon district attorneys and other critics, who warned legislators that it could lead to a slipshod release system, potentially jeopardizing public safety by putting dangerous offenders back on the streets.

Chuck French, a Multnomah County deputy district attorney who opposed the initial bill, said its passage would have turned back the clock to a troubling era in the 1970s when dangerous patients were freed “and went back to the community and killed people, raped people.”

During the legislative session, such warnings prompted legislators to back away from the original bill.

Ultimately, a “compromise” bill was fashioned and the amended version of SB 420 gained approval during the waning days of the legislative session, mandating creation of the two-tiered system.

French described the retooled bill as a satisfactory compromise.

“We’re relatively happy with what ended up coming out because we feel public safety is going to be maintained, at least with the most dangerous offenders,” he said. “It gives us a chance to monitor how this works out, without putting the most dangerous people out there as a test case.”

French said law enforcement officials strongly support the PSRB.

“I think by and large the PSRB has done a very good job,” he said. “I mean, we’ve had disputes with them, here and there. But as far as law enforcement is concerned, they have done their job.”

For Kirby, the fight to transform hospital release practices is far from over. He vowed to keep pushing for what he described as additional reforms during next year’s legislative session.

“Due to the fact that it got watered down by the DAs, SB 420 was less than what we had hoped for,” Kirby said in an e-mail to the newspaper. “That said, we still consider it a victory and an important psychological win because it was the first change to the outdated system in 30 years and was largely driven by patient lobbying efforts.

“Furthermore, in speaking with legislators, everyone is in agreement that the system is indeed broken and needs to be completely revamped. Unlike the PSRB, forensic psychiatry has come a long way since the 1970s, and we, along with our fellow patient and civil right advocates, are ready to come back to the table until we see the necessary changes to bring the system up to the modern standards of treatment and care.”


Mandatory Minimum Law has Disparate Effect on Black Juveniles September 14, 2011

Posted by FairSentencing in : Current News , add a comment

Oregon’s Measure 11 disproportionately pushes African American juveniles into the adult criminal justice system, according to a new report by the Partnership for Safety and Justice and the Campaign for Youth Justice.

The Oregonian reports that Measure 11 sets mandatory minimums for 21 violent crimes and requires juveniles charged with those crimes to be tried in the adult criminal justice system. The authors of the report found that African Americans made up 19 percent of those indicted under Measure 11, despite comprising only 4 percent of the state’s youth population.

The report, which also contends that Measure 11 has been ineffective in reducing juvenile crime rates, follows Governor John Kitzhaber’s formation of a committee to review Oregon sentencing laws and practices.